NYSBA Weighs In on AI Call Recording: What Lawyers Need to Know
It’s been over two years since I published my article Can Attorneys Ethically Record Conversations With Clients Using AI. At that time, no states had addressed the issue. But last week, the New York State Bar Association (NYSBA) weighed in with Formal Opinion 2025-6, which permits use of AI recording tools subject to rather obvious caveats like obtaining client consent and choosing secure recording platforms to safeguard confidentiality.
Client Consent Is Not Optional
The opinion makes clear that client consent is mandatory before recording calls with AI tools. While New York is a one-party consent state where undisclosed recording is generally legal, the ethics rules impose a higher standard. The prohibition against secretly recording conversations is rooted in Rule 8.4’s ban on deceptive conduct and the fundamental duty of loyalty lawyers owe their clients.
Accuracy Still Rests With the Lawyer
Lawyers must also independently verify the accuracy of the recorded transcript. The Opinion cautions against relying on AI-generated output without checking it particularly since these summaries may be referenced or relied upon years later. This is especially important for any informal advice given during the call, which can take on greater weight once memorialized in writing.
Lawyers also need to understand and address confidentiality risks with clients. This means knowing where the AI tool stores data, how long it retains recordings, whether it uses conversations for training purposes (a hard stop no), and whether the content could be subject to discovery.
When Clients Want to Record the Lawyer
Importantly, the opinion also addresses the flip side of clients who want to record their attorney. This situation creates more difficult issues since the lawyer can’t control the technology or have access to the recordings. The opinion recommends inclusion of a provision in the retainer agreement barring clients from recording without advance notice and warning clients about the confidentiality and privilege risks of using their own tools. But the preferable solution in my view is for lawyers to proactively record and share the transcript with clients, thereby obviating the need for them to do it themselves.
A Practical Next Step for Law Firms
Moving forward, law firms should consider including the below provision in their engagement agreement:
Our firm may record, transcribe, and summarize telephone and video conferences with clients using AI-enabled tools to ensure accuracy and improve the quality of our representation. We will always notify you in advance when a conversation will be recorded and will provide you with access to any transcripts or summaries generated from these recordings. By signing this engagement agreement, you consent to this recording policy and agree not to make your own recordings of conversations with our firm
Bottom line: AI recording tools can improve accuracy and client service, but only when used with transparency, care, and ethical guardrails firmly in place.